Professor Gerry McCormack's Publications
Secured Credit and the Harmonisation of Law (Edward Elgar, 2011),
This is a very timely book that addresses an important subject, namely, attempts to harmonise the law governing secured transactions.
Corporate Rescue Law - An Anglo-American Perspective (Edward Elgar Publishing, 2008), 1-307,
This book offers and unprecedented and detailed comparative critique of Anglo-American corporate bankruptcy law. It challenges the standard characterisation that US law in the sphere of corporate bankruptcy is 'pro-debtor' and UK law is 'pro-creditor', and suggests that the traditional thesis is, at best, a potentially misleading over-simplification. I conclude that there is some functional convergence in practice, while acknowledging that corporate rescue, as distinct from business rescue, still plays a larger role in the US. The focus is on corporate restructurings with in-depth scrutiny of Chapter 11 of the US Bankruptcy Code and the UK Enterprise Act.
Secured Credit under English and American Law (Cambridge University Press, 2004), xii,424p,
‘US exceptionalism and UK localism? Cross-border insolvency law in comparative perspective’, Legal Studies, 36.1 (2016), 136-162,
DOI: 10.1111/lest.12096, Repository URL: http://eprints.whiterose.ac.uk/87076/
© 2016 The Society of Legal Scholars.This paper addresses how the UNCITRAL Model Law on Cross-Border Insolvency has been implemented and interpreted in the US and the UK. The Model Law has attained a measure of international acceptance and is intended to achieve greater efficiencies in the administration of insolvency cases with transnational dimensions. But different manners of implementation in different countries and differing interpretations may hinder the prospects for harmonisation and coordination of laws. The paper will address in particular whether US interpretations differ from those in the UK and whether the US decisions are so infused with 'American exceptionalism' that they cannot be relied upon as sure guides in other countries.
‘Something Old, Something New: Recasting the European Insolvency Regulation’, Modern Law Review, 79.1 (2016), 121-146,
DOI: 10.1111/1468-2230.12169, Repository URL: http://eprints.whiterose.ac.uk/91886/
‘Australia and the International Insolvency Paradigm’, Sydney Law Review, 37.3 (2015), 389-416,
Repository URL: http://eprints.whiterose.ac.uk/88861/
Australia’s response to international insolvency is the Cross-Border Insolvency Act 2008 (Cth), which implements the UNCITRAL Model Law on CrossBorder Insolvency. The Act is designed to facilitate international trade and investment by improving the administration of cross-border insolvency cases, including the recovery of assets located overseas. However, the Act is not a comprehensive international insolvency statute. Apart from the ubiquitous and overarching common law and the Cross-Border Insolvency Act, Australian law relevant to cross-border insolvency includes the Corporations Act 2001 (Cth) ss 580–81, s 583 and s 601CL (the ancillary liquidation provision). Currently, the procedures overlap in a complex and confusing way, with cases potentially falling through gaps in the law and important provisions being overlooked. The end result for the administration of cross-border insolvency cases is incongruity and inconvenience, with added cost and complication. The time has come for a rethink and redesign of Australia’s international insolvency framework. The revised framework should include reconceptualisation of the basis for international insolvency cooperation, with incorporation of the Model Law standards as the basic threshold for insolvency assistance and provision for enhanced cooperation and assistance in certain circumstances. The conceptual redesign should also tackle some of the current limitations of the Cross-Border Insolvency Act
‘Schemes of Arrangement: Theory, Structure and Operation’, EUROPEAN BUSINESS ORGANIZATION LAW REVIEW, 16.1 (2015), 167-171,
‘Reforming the European Insolvency Regulation: A Legal and Policy Perspective’, Journal of Private International Law, 10.1 (2014), 41-67,
DOI: 10.5235/17441048.10.1.41, Repository URL: http://eprints.whiterose.ac.uk/91885/
This paper will critically evaluate the proposals for reform of the European Insolvency Regulation - regulation 1346/2000 - advanced by the European Commission. While criticised by some commentators as unsatisfactory, the Regulation – is widely understood to work in practice. The Commission proposals have been described as 'modest' and it is fair to say that they amount to a 'service' rather than a complete overhaul of the Regulation. The proposals will be considered under the following heads (1) General Philosophy; (2) Extension of the Regulation to cover pre-insolvency procedures; (3) Jurisdiction to open insolvency proceedings; (4) Co-ordination of main and secondary proceedings; (5) Groups of Companies; (6) Applicable law; (7) Publicity and improving the position of creditors. A final section concludes. The general message is that while there is much that is laudable in the Commission proposals, there is also much that has been missed out, particularly in the context of applicable law. The proposals reflect an approach that, in this particular area, progress is best achieved by a series of small steps rather than by a great leap forward. This is not necessarily an approach that is mirrored in other areas of European policy making.
‘Bankruptcy forum shopping: The UK and US as venues of choice for foreign companies’, International and Comparative Law Quarterly, 63.4 (2014), 815-842,
© 2014, Cambridge University Press. All rights reserved.This paper critically evaluates 'forum shopping' possibilities offered by the UK and US in bankruptcy/insolvency cases. While recognizing that in some quarters forum shopping has a bad name, the paper makes the point that strategic manoeuvring and transaction planning is what litigation and case management is all about. Certain countries are popular as forum shopping venues because of substantive law or the procedural advantages brought about by litigating in that country. The paper concludes that while the UK may have shut its doors too firmly against foreign forum shoppers, the US is too much a safe haven. The paper calls for a measure of jurisdictional restraint through raising entry barriers. While a bit of jurisdictional competition in insolvency law-making may be no bad thing, the US approach runs the risk of undermining important policies considered important by other countries such as the protection of employees and the public purse. It is also asymmetrical in that US bankruptcy jurisdiction is assumed in situations where, if foreign countries had acted on a similar basis, US recognition of the foreign proceedings would be denied.
‘Reconciling European conflicts and insolvency law’, European Business Organization Law Review, 15.3 (2014), 309-336,
© 2014 T.M.C.ASSER PRESS.Abstract This paper focuses critically on European conflicts and insolvency law - examining and evaluating the relationship between the Jurisdiction and Judgments Regulation and the Insolvency Regulation. The Regulations are founded on the notion of judicial cooperation in civil matters linked to maintaining and developing an area of freedom, security and justice. The paper asks whether these high-minded ideals have been achieved in practice. It also asks whether the recent recasting of the Jurisdiction and Judgments Regulation, and the proposals for revision of the Insolvency Regulation will improve the situation. The paper concludes that the ideals have not quite been achieved and the reform proposals provide only a partial solution.
‘Conflicts, avoidance and international insolvency 20 years on: a triple cocktail’, Journal of Business Law 2013, 141-159,
‘Universalism in insolvency proceedings and the common law’, Oxford Journal of Legal Studies, 32.2 (2012), 325-347,
This article critically examines the principle, articulated by Lord Hoffmann in leading cases, that universalism in insolvency proceedings is the golden thread of the common law. This principle suggests that there should be a unitary bankruptcy proceeding in a bankrupt's 'home' jurisdiction that applies universally to all the bankrupt's assets and which receives worldwide recognition. The article argues that the principle is not a practical reality in the common law and should not influence the interpretation of the international insolvency agreements to which the UK is a party. It suggests that the common law, instead of reflecting a universalist ideal, has steered a pragmatic middle course that owes more to realpolitik than to principle. This is not surprising given that vital national policies are often at stake in insolvency, and given the mishmash of sometimes competing principles at the heart of the subject such as encouraging the prompt payment of debts, adjustment of prior transactions, restoring the status quo ante, investigating past misconduct and debtor and business rehabilitation. © The Author 2012. Published by Oxford University Press. All rights reserved.
‘COMI and comity in UK and US insolvency law’, Law Quarterly Review, 128 (2012), 140-159,
A critical evaluation of the Model Law on Cross-Border Insolvency and the manner of its implementation in the UK and US, arguing that despite professed intentions, uniform implementation has not been achieved in practice nor has uniformity of interpretation. The latter goal was unrealistic, since the broad institutional and political dynamics in both the US and UK, including Britain's membership of the European Union and the appearance of the European Insolvency Regulation, were always likely to produce divergences of interpretation. Convergence and divergence across three important fronts are explored: "centre of main interests" (COMI) as the basis for recognising foreign main insolvency proceedings; protection of domestic creditors consequent upon recognition of foreign proceedings; and "additional assistance" that may be provided in relation to foreign proceedings. (Quotes from original text).
‘Time to Revise the Insolvency Regulation’, International Insolvency Law Review, 2 (2011), 121-130,
‘UNCITRAL, security rights and the globalisation of the US Article 9’, Northern Ireland Legal Quarterly, 62 (2011), 485-504,
‘American Private Law Writ Large?: The UNCITRAL Secured Transactions Guide’, International and Comparative Law Quarterly, 60 (2011), 597-625,
‘Reconstructing European Insolvency Law: Putting in Place a New Paradigm’, Legal Studies 2010, 126-146,
‘Convergence, Path-Dependency and Credit Securities: The Case against Europe-Wide Harmonisation’, Global Jurist, 10.2 (2010), 1-37,
‘Jurisdictional Competition and Forum Shopping in Insolvency Proceedings’, Cambridge Law Journal, 68 (2009), 169-197,
‘Rescuing Small Businesses: Designing an 'Efficient' Legal Regime’, Journal of Business Law 2009, 299-330,
‘Corporate Rescue Law in Singapore and the Appropriateness of Chapter 11 of the US Bankruptcy Code as a Model’, Singapore Academy of Law, 20.Special issue (2008), 396-437,
‘Control and Corporate Rescue - An Anglo-American Evaluation’, International and Comparative Law Quarterly, 56.3 (2007), 515-551,
‘Super-priority New Financing and Corporate Rescue’, Journal of Business 2007, 701-732,
‘Swelling Corporate Assets: Changing What Is on the Menu?’, Journal of Corporate Law Studies, 6.1 (2006), 39-69,
‘The Law Commission Consultative Report on Company Security Interests: An Irreverent Riposte’, The Modern Law Review, 68.2 (2005), 286-309,
‘Lords Hoffman and Millett and the Shaping of Credit and Insolvency Law’, Lloyd's Maritime and Commercial Law Quarterly 2005, 491-514,
‘Personal Property Security Law Reform in Comparative Perspective - Antipodean Insights?’, Common Law World Review, 33 (2004), 3-34,
‘The Priority of Secured Credit: an Anglo-American Perspective’, Journal of Business Law, JUL (2003), 389-419,
‘Apples and Oranges? Corporate Rescue and Functional Convergence in the US and UK’, International Insolvency Review, 18, 109-134,
‘Convergence, path-dependency and credit securities: The case against europe-wide harmonisation’, in Theory and Practice of Harmonisation ([n.pub.], 2012), 352-392,
‘Fairness and efficiency in the law of guarantees’, in Consumer Credit, Debt and Investment in Europe ([n.pub.], 2012), 182-211,
© Cambridge University Press 2012.This chapter considers the law of surety guarantees and suggests that it fails to pass muster on both ‘efficiency’ and fairness grounds. While surety law has received attention from both the courts and law reformers in recent years it is still unsatisfactory. The chapter highlights certain anomalies and makes the case for reform. In pointing out incongruities, the chapter looks at the role of suretyship law as largely default law, which means that the relevant parties to the transaction are free to contract around the rules that would otherwise apply. This can be considered unsatisfactory because it opens up the possibility of contractual ‘overkill’ in the shape of widely drafted clauses that extend liability. Such provisions do not appear to be subject to control under the Unfair Contract Terms Act 1977 (UCTA) or the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR), though the High Court decision in Barclays Bank v. Kufner suggests otherwise. The chapter also considers the role of taxonomy in judicial discourse. Categorisation exercises have been particularly influential in the law of guarantees but the chapter makes the case for a more nuanced approach that may be able to respond better to the subtleties of the situation. Too often the law may be presented in dichotomous terms, preventing a more layered and deeper understanding. The chapter consists of five parts. The first part examines more closely what is meant by the concept of efficiency and then relates this to issues of taxonomy. The second part looks at suretyship law as default law and considers the functions served by default rules. The third part looks at three situations highlighting the operation of suretyship law as a series of default rules and considers how contractual exclusions of the default rules weaken, if not entirely eliminate, the prospects of the law meeting its objectives. The fourth part looks at statutory protection for guarantors and the final part then concludes and summarises the discussion.
‘Secured transactions law reform, UNCITRAL and the export of foreign legal models’, in Availability of Credit and Secured Transactions in a Time of Crisis ([n.pub.], 2011), 33-60,
© Cambridge University Press 2013.UNCITRAL, the United Nations Commission on International Trade Law, has produced a Legislative Guide on secured transactions, or secured credit law, as it is variously called. The Guide follows the broad contours of Article 9 of the United States Uniform Commercial Code, though it is not an exact copy. It aims to harmonize and modernize the law of secured credit across the globe. In UNCITRAL’s view, the Legislative Guide will aid the growth of individual businesses and also general economic prosperity. Harmonization and ‘modernization’ are assumed to equal ‘liberal’ security regimes and the facilitation of secured credit. In this chapter, the modernization equals liberalization agenda is subjected to greater scrutiny. UNCITRAL is not the only international organization working on the design of an ‘efficient’ legal regime for secured transactions. For example, the European Bank for Reconstruction and Development (EBRD) in 1994 and the Organization of American States (OAS) in 2002 have both produced Model Laws and done follow-up work of greater or lesser intensity. The World Bank has formulated principles for ‘Effective Insolvency and Creditors Rights System’ (revised in 2005) and has also produced a series of reports designed to evaluate the ease of doing business across the globe. As part of the evaluation process, the Doing Business reports have made use of a ten-point template measuring the degree to which secured credit and bankruptcy laws in particular jurisdictions ‘protect the rights of borrowers and lenders’ and thus facilitate secured lending.
‘Pressured by the paradigm: the Law Commission and company security interests’, in The Reform of UK Personal Property Security Law (London: Routledge Cavendish, 2010), 83-116,
‘Boyle and Birds' Company Law (7th edition 2009)’, in Boyle and Birds' Company Law, ed. by Birds J, 7th (Bristol: Jordan Publishing Ltd, 2009), 811-927,
‘The CFR and Credit Securities – A Suitable Case for Treatment?’, in European Private Law Beyond the Common Frame of Reference, ed. by Vacquer A (Amsterdam: Europa Law Publishing, 2008), 99-129,
‘Protection of Surety Guarantors in England - Prophylactics and Procedure’, in Protection of Non-Professional Sureties in Europe: Formal and Substantive Disparity, ed. by Ciacchi AC (Baden-Baden Germany: Nomos Publishing, 2007), 153-184,
‘Reform’, in Secured Finance Transactions: Key Assets and Emerging Markets, ed. by Ali P (London: Globe Law and Business, 2007), 41-56,
‘The UNCITRAL Legislative Guide on Secured Transactions – Functionalism and Form’, ed. by Foex B, Thevenoz L and Bazinas S (Geneva: Schulthess, 2007), 43-62,